Tuesday, May 01, 2012

Government "disappears" CSIS IG

Our current government wants to know a whole lot more about what you're up to — whom you e-mail, what you're buying online, what websites you visit, the location of your cellphone, pretty much everything except of course whether you own a long gun (that would be intrusive!).

But it doesn't seem to care nearly as much about what the agencies that would get access to that information are up to. At least, that seems to be the message in its recent quiet decision to eliminate the position of CSIS Inspector General.

The Conservative government has decided that less review of its intelligence agency, the Canadian Security Intelligence Service, is more, or at least that less review is not less.

This was the strange message that emerged from a minuscule section of last week’s mammoth Budget Implementation Act (Bill C-38). At p. 280 (of 420) the government took an axe to the Office of the Inspector General of CSIS. The Inspector General was established 28 years ago alongside the creation of CSIS and has performed a valuable, if largely silent, function ever since. For the Inspector General was meant to be the eyes and ears of the minister himself, ensuring that the minister in charge of CSIS (nowadays the Public Safety Minister, Vic Toews) would have a dedicated but independent office reporting to him to ensure that CSIS operated within the law, in compliance with ministerial directives, and with good effect. The Inspector General’s office was meant to resolve a dilemma for all cabinet ministers charged with responsibility for CSIS — the dilemma being that they could neither afford to be too involved in the operational activities of the service, nor kept too much in the dark.

Being accountable to Parliament and to the Canadian people for a secret agency with intrusive powers and a significant mandate to protect Canadian national security is a tricky business.

The Conservative government appears to disagree. It has decided to do away with the IG’s office and have another body created at the time of the CSIS Act in 1984 — the Security Intelligence Review Committee — take on the responsibility. On the surface this is being done in accord with the government’s efforts to greatly reduce the federal bureaucracy.

But what are the real savings? The Inspector General’s Office does not post its annual budget, but it has a small staff of eight officials and has not increased its establishment since 1996. As Paul Kennedy, the former senior bureaucrat and public complaints commissioner for the RCMP remarked to the CBC — “penny wise, pound-foolish.”

There is a real downside to the closure of the Inspector General’s office, which far outweighs any microscopic savings. That downside is the decline in ministerial accountability. The minister will lose a small but experienced office that reported directly to him in conditions of secrecy on all matters having to do with the conduct of CSIS. The Security Intelligence Review Committee cannot, and should not, take over such a role. SIRC was established back in 1984, that Orwellian year, to be an independent body that would report to Parliament on the lawfulness of CSIS. It’s not the minister’s agency.

Moreover, SIRC itself is small and is promised no new resources to enhance its reporting. The degree to which the Conservative government takes SIRC seriously is placed in doubt by its failure to replace the SIRC chair, a part-time position, following the departure last year of Arthur Porter for alleged improprieties. Not only is SIRC headless for the moment, but the other Privy Councillors appointed to the committee do not have inspiring backgrounds in federal politics, decision-making or in terms of their knowledge of intelligence and national security issues.

Against the larger picture of Canadian government budgetary cuts, maybe the loss of the Inspector General’s Office will occasion little notice or concern. But it is part of a worrisome trend by the Conservative government to disengage itself from the operations of CSIS, illustrated earlier in the year when ministerial directives on how CSIS should handle intelligence possibly derived from torture came to light.

It seems to me that rather than eliminating the position of CSIS Inspector General, the government should consider creating a parallel position for CSE, which as far as I know has never had its own Inspector General.

CSE does have the Communications Security Establishment Commissioner, who plays a role somewhat similar to that of the SIRC, but his office is even less capable than SIRC of serving as an Inspector General surrogate.

Unfortunately, there is simply no prospect that the current government will act to expand CSE's oversight/accountability framework, despite the massive growth in the agency's surveillance powers.

In fact, we can't even take the continuing existence of the Office of the CSE Commissioner for granted.

It is worth remembering that the CSE Commissioner began in 1996 as a one-time appointment with no guarantee that a second appointment would ever be made. The position is now enshrined in legislation, but not as securely as you might imagine. The National Defence Act sets out the role and powers of the office, but nothing in that act actually obliges the government to appoint a Commissioner. Note the language used: "The Governor in Council may" — not shall — "appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment".

Moreover, as the fate of the CSIS Inspector General demonstrates, even that optional procedure could easily be deleted by a minor provision in the government's next 420-page omnibus bill if the Prime Minister were to decide that he'd rather not pay the $1.6-million annual cost of the CSE Commissioner.

Our only real assurance against such a step is that no one but a fool would even consider it. Surely this government would never do such a thing.

2 Comments:

On the topic of OCSEC's legal status, unlike SIRC, it is not included in Access to Information legislation, and you can not file requests. (They do however have an ATIP Co-ordinator, who is responsible for handling consults).